Citation Nr: 1506597
Decision Date: 02/12/15 Archive Date: 02/18/15
DOCKET NO. 10-02 853 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
David Gratz, Counsel
INTRODUCTION
The Veteran served on active duty from September 1966 to June 1968. He served in the Republic of Vietnam from March 1967 to June 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied the Veteran's claim for service connection for PTSD.
The Veteran originally requested a hearing before a decision review officer (DRO) along with his January 2010 substantive appeal; however, in a July 2010 statement, the Veteran withdrew his request for a DRO hearing. The hearing request is therefore deemed withdrawn.
In July 2013, the Board remanded this case for further development. The case has returned to the Board for appellate review.
The Board has considered all claimed and diagnosed acquired psychiatric disorders, as required by Clemons v. Shinseki, 23 Vet. App. 1 (2009).
FINDING OF FACT
The preponderance of the evidence shows that an acquired psychiatric disorder is not related to service or to an incident of service origin.
CONCLUSION OF LAW
The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Duties to Notify and Assist
VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).
The duty to notify was satisfied prior to the initial February 2009 RO decision by way of a letter sent to the Veteran in October 2008 that informed him of his duty and the VA's duty for obtaining evidence. The RO also provided adequate notice of how disability ratings and effective dates are assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's available service personnel and treatment records, VA treatment records, and lay evidence have been obtained.
Additionally, the August 2010 and September 2013 medical examinations of record are adequate. The examiners used their expertise to draw conclusions from the totality of the evidence. Their reports discussed the medical and lay evidence of record sufficiently to render complete opinions and rationales. See Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
This claim was remanded by the Board for additional development in July 2013. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA requested additional treatment records and lay statements, and provided the Veteran with a new examination in September 2013. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998).
The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.
Analysis: Service Connection
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).
The Veteran contends in a December 2008 statement that his unit was under constant shelling during his first three days in Vietnam, and under sporadic shelling thereafter. The Veteran's spouse described his symptoms in letters dated April 2009 and September 2013.
As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements and inconsistency with other evidence submitted on behalf of the appellant. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).
The Board finds that the Veteran's statements regarding an in-service incurrence lack credibility both because they are inconsistent, and because they are unsupported by contemporaneous complaints, diagnosis, or treatment. Specifically, the Veteran told an August 2005 VA clinician that his friend was killed on perimeter duty in Vietnam. By contrast, the Veteran told the August 2010 VA examiner that his Marine compound near Hue faced incoming shots, rockets, and mortars from approximately January to March 1968; the examiner recorded that the Veteran "reports no one in his unit was injured or killed but that the experience was stressful and frightening." By further contrast, the September 2013 VA examiner recorded that the Veteran stated that he was in a bunker during the Tet offensive of 1968 and his unit "lost three guys that night." The September 2013 VA examiner observed that:
It is interesting to note that during this exam he reported that 3 men from his unit were killed during Tet, but in his previous C&P exam,
8/25/10, he reported that no one in his unit was killed....In his statement in support of claim dated 8/20/13, there was no mention of the woman that he claimed he saw during this exam who had been "violated," or of the 3 members of his unit he reported were killed, or the piles of dead bodies....[T]hese inconsistencies creat[e] significant questions about the validity of his report of experiences he had in Vietnam.
The fact that the Veteran provided such inconsistent accounts of the event(s) that ostensibly occurred during his service leads the Board to find that they lack credibility. Moreover, the Board finds the fact that the Veteran's statements are unsupported by any contemporaneous complaints, diagnosis, or treatment further demonstrates that they lack veracity. In that regard, in the Veteran's June 1968 Report of Medical History at separation from service, he reported that he did not have and had never had frequent or terrifying nightmares, depression or excessive worry, or nervous trouble of any sort. Likewise, in his June 1968 Report of Medical Examination a clinician found that the Veteran's psychiatric status was "Normal." In light of the foregoing, the Board finds that none of the statements regarding the events which ostensibly occurred during the Veteran's service, and to which he attributes his acquired psychiatric disorder, are credible for purposes of establishing service connection.
Further, the most probative evidence is against a nexus between any in-service event and any current disability. In December 2005, a VA clinician found that the Veteran did not have any psychological factors which warranted further consideration. Moreover, both the August 2010 and September 2013 VA examiners found that the Veteran has no Axis I psychological diagnosis. The September 2013 examiner specified that the Veteran's "symptoms are extremely mild and do not currently meet criteria for a mental health diagnosis....The Veteran does not meet criteria for PTSD or have a persistent or chronic mental illness associated with his military service." Further, a September 2010 VA clinician found that:
[The Veteran] is hoping someone else can give him the dx [diagnosis of PTSD] so that he can push is claim forward. [I n]oted with him that while he may have some [symptoms], that apparently he doesn't meet the full criteria and that, especially considering the evaluation, that it would be unlikely that anyone would give him the dx without dramatic new evidence that would significantly outweight [sic] what we already know.
The VA clinicians' and examiners' opinions are competent because they are qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, their opinions are credible based on their internal consistency and the examiners' duty to provide truthful opinions. The Board further finds that the examiners' opinions are most probative because they considered the Veteran's medical records and discussed his medical history, provided unequivocal and conclusive opinions, and offered clear reasoning demonstrating that the Veteran's claimed psychiatric disorders are unrelated to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
To the extent that the Veteran's statements are interpreted as a self-diagnosis of PTSD, the Board finds that this is not competent because PTSD is a complex disorder. See Young v. McDonald, 766 F.3d 1348 (Fed.Cir. 2014) (service connection for PTSD requires medical evidence diagnosing the condition); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the most probative evidence is against the finding of a current diagnosis of PTSD, and service connection is therefore not warranted for PTSD. See Degmetich v. Brown, 104 F.3d 1328 (1997).
With respect to the Veteran's non-PTSD psychiatric diagnoses from treating clinicians, including a December 2008 diagnosis of "Anxiety state," the September 2013 VA examiner opined that:
The incidences in his medical record where these diagnos[e]s are recorded represent flare-ups of his symptoms that still do not meet [the] criteria for PTSD. These symptoms have been noted to subside which is why the Veteran does not have a persistent mental health disorder. It is interesting to note [that] these flare-ups occur around either fireworks or periods when he is having conflict with his wife....[H]is response to interpersonal conflict is to become anxious which would in turn make him more jumpy when startled....[His] symptoms emerge as a way of resolving interpersonal conflict.
His anxiety state does represent a kind of diagnosis, but not one relating to a chronic and persistent mental illness...that was caused by or the result of his military service.
The Board finds that the preponderance of the evidence shows that the Veteran's reports of an in-service incident lack credibility; his contemporaneous service treatment records show that he had no complaints, diagnosis, or treatment of any acquired psychiatric disorder during service or at separation; he was not diagnosed with a psychiatric disorder until many years after service; and there is no nexus between any present disorder and his service.
Therefore, the Board finds that service connection is not warranted for an acquired psychiatric disorder. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Service connection for an acquired psychiatric disorder is denied.
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs